Vaughn-Martel Law Blog

As we all know, the Defense of Marriage Act disqualifies same-sex married couples from the innumerable federal benefits of marriage, including social security benefits. Two federal lawsuits are challenging the legality of DOMA, one of which is presently before the United States Supreme Court.

Boston-based GLAD (Gay & Lesbian Advocates & Defenders) has created a comprehensive resource for same-sex couples outlining the additional benefits that same-sex couples and their children would otherwise be entitled to in the absence of DOMA. As GLAD's publication, "Social Security Benefits And the Defense of Marriage Act: Can I Do Anything Now to Preserve My Rights? YES", explains:

In the Social Security context, DOMA means that a person married to someone of the same sex cannot claim the Social Security benefits that might be due to a spouse, including:

• the spousal retirement benefit;
• the spousal disability benefit;
• the lump-sum death benefit; and
• the survivor benefit.

DOMA also can limit a child’s access to Social Security benefits. For example, when a married working parent dies, DOMA means that a child of the marriage may be denied benefits unless the worker is that child’s birth or adoptive parent or the family lives in a State where the child could inherit from that parent under the State’s intestacy law (this should include all States that permit same-sex couples to marry and Washington, D.C. as well as States that recognize marriages of same-sex couples from other states).

GLAD's publication also describes what same-sex couples can do now in order to preserve their access to social security benefits in the event that DOMA is either repealed or deemed unconstitutional, as many expect that it will be. In some instances, the law mandates that an applicant apply for social security benefits within a specific time frame, for example within 2 years of the death of a spouse. Under some circumstances, GLAD explains, it may make sense in certain circumstances to apply for benefits now - expecting your claim to be denied - in order to preserve important rights of appeal in the event that DOMA is overturned.

If you are in a position to access benefits under social security, and you believe that your right to benefits may be impacted by DOMA, reach out to your legal and tax professional. GLAD encourages individuals to reach out to them with questions on their InfoLine: (800) 455-GLAD.